Bayley Construction v. Great American E&S Insurance Company

Filing 41

ORDER granting 28 Defendant's Motion in Limine by Judge James L. Robart.(MD)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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BAYLEY CONSTRUCTION,
Plaintiff,

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ORDER GRANTING MOTION IN
LIMINE

v.

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CASE NO. C13-0114JLR

GREAT AMERICAN E&S
INSURANCE COMPANY,

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Defendant.
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Before the court is Defendant Great American E&S Insurance Company’s (“Great

17 American”) motion in limine to prohibit Plaintiff Bayley Construction (“Bayley”) “from
18 presenting expert testimony due to [Bayley’s] failure to disclose experts by the August
19 22, 2013[,] deadline set forth by the [c]ourt.” (Mot. (Dkt. # 28) at 1.) Having reviewed
20 the motion, all submissions filed regarding the motion, the balance of the record, and the
21 applicable law, and considering itself fully advised, the court GRANTS Great
22 American’s motion.
ORDER- 1

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The Federal Rules of Civil Procedure provide that:

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If a party fails to provide information or identify a witness as required by
Rule 26(a) or (e), the party is not allowed to use that information or witness
to supply evidence on a motion, at a hearing, or at a trial, unless the failure
was substantially justified or is harmless.

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Fed. R. Civ. P. 37(c)(1); see also Goodman v. Staples The Office Superstore, LLC, 644
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F.3d 817, 826 (9th Cir. 2011). The court set the disclosure deadline for experts at August
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22, 2013, per Rule 26(a)(2). (See 4/10/13 Order (Dkt. # 11) at 1.) Bayley did not
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disclose any experts by this deadline. (See Mot. at 2.; Hampton Decl. (Dkt. # 29) ¶ 3.) In
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its communications with Great American, however, “Bayley’s counsel is noncommittal
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about Bayley’s intentions regarding expert testimony.” (Mot. at 2; see also Hampton
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Decl. ¶ 5.) Bayley did not respond to this motion.1 Because Bayley failed to disclose any
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experts by the court’s disclosure deadline and has not attempted to provide any
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justification for doing so, Rule 37(c)(1) prohibits Bayley from relying on experts in future
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proceedings in this case. Thus, the court GRANTS Great American’s motion in limine
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(Dkt. # 28). If Bayley later wishes to rely on experts, it must request leave from the court
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through its own motion showing that its failure to disclose was substantially justified or
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harmless under Rule 37(c)(1).
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See Local Rules W.D. Wash. CR 7(b)(2) (“If a party fails to file papers in opposition to

22 a motion, such failure may be considered . . . an admission that the motion has merit.”).
ORDER- 2

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Dated this 22nd day of November, 2013.

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A

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JAMES L. ROBART
United States District Judge

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ORDER- 3